47 S.E. 401 | N.C. | 1904
Lead Opinion
This is an action to restrain the execution of chapter 414, Laws 1903, its unconstitutionality being averred on the ground that it lays a tax of three cents per bushel on clams, two cents per bushel on oysters in the shell and two cents per gallon on shucked oysters “shipped out of said county, “ and not also upon the shell-fish situate, dug or consumed within said county, and- that the said tax amounts to an impost or export tax and is not levied for the purpose of inspection.
The act in question is entitled “An act to protect and promote the shell-fish industry of Brunswick.” If such is its true purport and object, it is within the police power of the State, and a tax levied for such object would be legal although laid only upon shell-fish in that county. If levied upon shell-fish in that county only for the purpose of raising revenue for the State treasury, it would be forbidden
The tax required for the enforcement of a police regulation is not a tax within the meaning of our Constitution requiring uniformity and equality in taxation, but “is a proper mode of providing for the compensation” of an officer designated to enforce such regulation in the prescribed territory “and the payment of any expenses incidental to this” duty. State v. Tyson, 111 N. C., 687. Local legislation in the nature of police regulation has always been sustained — see as to the sale of liquor, sale of seed cotton, fence laws, cattle running at large, working public roads and such legislation for many other purposes, the authorities collected in State v. Sharp, 125 N. C., 632, 74 Am. St. Rep., 663.
In fact, this statute applies uniformly to all citizens of Brunswick and all others, whether residents or nonresidents of this State, who go to that county to take shell-fish for shipment. But even if the act had forbidden nonresidents of this State to take shell-fish in that county, it would have been competent for the Legislature to so enact, for the ownership of game and fish is in the State, and license to hunt or fish is not an immunity or privilege of the citizens of this State. State v. Gallop, 126 N. C., 983, and cases cited; McCready v. Virginia, 94 U. S., 391. In Chambers v. Church, 14 R. I., 398, 51 Am. Rep., 410, it is held that a State “may forbid nonresidents from catching fish in its waters for manure and oil, and manufacturing manure and oil from fish caught in its waters.” In Harvey v. Compton, 36 N. J. Law, 507, in the matter of prohibiting nonresidents from gathering oysters within the waters of New Jersey, the Court says: “Such enactment for the protection of property must be considered as a matter of internal police, and not a regulation of commerce with foreign nations or among the States. Neither does it controvert the provisions of the
It is further and chiefly contended that the act is unconstitutional in that it levies the tax solely upon shell-fish shipped out of the county and not also upon the other shell-fish situate, dug or consumed in said county. The tax could not be levied upon all the shell-fish “situate” in Brunswick County, because there is no possible means to ascertain this. It would also be difficult to ascertain the number dug and consumed. The ascertainment of the number shipped out of the county is more practical, and the levy of a tax thereon is - a reasonable method of deriving funds for the enforcement of the regulations for the protection of shell-fish, and is not for revenue. It is not unreasonable that no tax is laid upon shell-fish consumed for the sustenance and support of the people, residing in the county. The tax laid is not an export tax, but is simply the method chosen by the Legislature as the least onerous and most practicable system of raising the necessary funds to defray the expenses of protecting the shell-fish industry in the county of Brunswick. The regulation of fishing and hunting is, as above said, a matter entirely within the discretion of the State. Lawton v. Steele, 151 U. S., 133; State v. Gallop, 126 N. C., 984.
In refusing to hold the statute unconstitutional there was
No Error.
Dissenting Opinion
dissenting. The opinion of the Court rightly says: “If (the tax were) levied upon shell-fish in that county for the purpose of raising revenue for the State treasury, it would be forbidden by the Constitution because not laid by uniform rule.” The opinion further says, and I think correctly so, that “from the title and general purport of the
Lead Opinion
DOUGLAS, J., dissenting. *113 This is an action to restrain the execution of chapter 414, Laws 1903, its unconstitutionality being averred on the ground that it lays a tax of three cents per bushel on clams, two cents per bushel on oysters in the shell and two cents per gallon on shucked oysters "shipped out of said county," and not also upon the shellfish situate, dug or consumed within said county, and that the said tax amounts to an impost or export tax and is not levied for the purpose of inspection.
The act in question is entitled "An act to protect and promote the shellfish industry of Brunswick." If such is its true purport and object, it is within the police power of the State, and a tax levied for such object would be legal although laid only upon shellfish in that county. If levied upon shellfish in that county only for the purpose of raising revenue for the State treasury, it would be forbidden by the Constitution because not laid by "uniform rule." State v. (160)Moore,
The tax required for the enforcement of a police regulation is not a tax within the meaning of our Constitution requiring uniformity and equality in taxation, but "is a proper mode of providing for the compensation" of an officer designated to enforce such regulation in the prescribed territory "and the payment of any expenses incidental to this" duty. State v. Tyson,
In fact, this statute applies uniformly to all citizens of Brunswick and all others, whether residents or nonresidents of this State, who go to that county to take shellfish for shipment. But even if the act had forbidden nonresidents of this State to take shellfish in that county, it would have been competent for the Legislature to so enact, for the ownership of game and fish is in the State, and license to hunt or fish is not an immunity or privilege of the citizens of this State. State v.Gallop,
It is further and chiefly contended that the act is unconstitutional in that it levies the tax solely upon shellfish shipped out of the county and not also upon the other shellfish situate, dug or consumed in said county. The tax could not be levied upon all the shellfish "situate" in Brunswick County, because there is no possible means to ascertain this. It would also be difficult to ascertain the number dug and consumed. The ascertainment of the number shipped out of the county is more practical, and the levy of a tax thereon is a reasonable method of deriving funds for the enforcement of the regulations for the protection of shellfish, and is not for revenue. It is not unreasonable that no tax is laid upon shellfish consumed for the sustenance and support of the people residing in the county. The tax laid is not an export tax, but is simply the method chosen by the Legislature as the least onerous and most practical system of raising the necessary funds to defray the expenses of protecting the shellfish industry in the county of Brunswick. The regulation of fishing and hunting is, as above said, a matter entirely within the discretion of the State. Lawton v. Steele,
In refusing to hold the statute unconstitutional there was
No error.